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TMI Blog2014 (9) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 (hereinafter referred to as 'the Act') cannot be dismissed for failure of an assessee to comply with an order of pre-deposit, passed under Section 35F of the Act. The maintainability of an appeal, filed u/s 35B of the Act, does not depend upon compliance with an order of pre-deposit. The Act does not enact any provision that empowers the Tribunal to dismiss an appeal for failure to comply with an order of pre-deposit, passed under Section 35F of the Act. It is further contended that as Section 35F of the Act commences with the words "Where in any appeal under this Chapter...". An order passed under Section 35F of the Act is passed in an already pending appeal, and mere failure to comply with an order of pre-deposit, passed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties, perused Sections 35B and 35F of the Act and have no hesitation in holding that failure to comply with an order of pre-deposit, passed under Section 35F of the Act would entail dismissal of the appeal. Sections 35B and 35F of the Act read as follows :- "Section 35B. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 35A; (c ) an order passed by the Central Board of Excise and Customs constituted under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998." "Section 35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling an appeal" to pre-deposit the amount of duty subject, however, to any order passed reducing the duty etc. An appeal may, therefore, be filed under Section 35B of the Act but can only be entertained and said to be properly constituted for adjudication on merits, if the person "desirous of filing an appeal", has deposited the amount of duty demanded or penalty levied, subject, however, to any relief that may be granted by the Tribunal, in terms of the proviso to Section 35F of the Act. The judgments relied by the appellant namely Promising Exports Limited (supra), Kishori Pujari Granite Pvt. Ltd. (supra) and, B.D. Steel and Traders (supra), by other Hon'ble High Court have not taken into consideration the expression "the person desirous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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